dissenting:
This is not a case in which a would-be bidder has been refused, because another federal agency has already suspended it, the opportunity even to submit a bid; that kind of case is not now before us. Instead, this is a case in which the appellant’s bids were received and considered for a measur*1346able period of time. ATL submitted the two bids involved here to the Corps of Engineers; these were initially accepted along with others, were opened along with the others in December 1983 and January 1984, and found to be the low bids. Not wishing to make an award on the then due dates of March 16th and 21st, the Corps of Engineers asked and received extensions to March 30, 1984, from ATL and the other bidders. It- was not until March 7th that the Engineers informed ATL that it would not award that company the contracts so long as the Navy suspension lasted. There was, in short, an acceptance of the bids as such, and some consideration of them for a period of time.
This was enough, in my view, to invoke the “implied contract” theory on which the jurisdiction of the Claims Court over preaward contract claims, 28 U.S.C. § 1491(a)(1), (3), is said to rest. United States v. John C. Grimberg Co., 702 F.2d 1362, 1367 (Fed.Cir.1983); CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1572-73 (Fed.Cir.1983); Electro-Methods, Inc. v. United States, 728 F.2d 1471, 1475 (Fed.Cir.1984); ATL, Inc. v. United States, 736 F.2d 677, 681, 682 (Fed.Cir.1984). Here, that implied contract of fair consideration was not simply an agreement “implied in law” but, rather, an implied-in-fact contract based on the mutual consensual transactions of both ATL and the Corps of Engineers. The Claims Court therefore had jurisdiction.
The majority holds that that conclusion is thwarted by 10 U.S.C. § 2393 (1982), prohibiting the Government’s doing business with suspended contractors and bidders. Unlike the court, I reject that position because § 2393 expressly defines “suspend” (for contract purposes) to mean “to disqualify, pursuant to established administrative procedures” (emphasis added). 28 U.S.C. § 2393(c)(2). We have already held in ATL I, supra, that the Navy’s suspension of ATL did not occur “pursuant to established administrative procedures”, in the only sense in which Congress can have used that phrase, i.e., pursuant to lawfully established procedures. Congress could not have meant that a procuring agency can adopt whatever suspension procedures it wishes — no matter how much those procedures depart from statutory or constitutional requirements. ATL I holds that thus far the Navy has not given to ATL all the rights to which it is entitled. The Navy’s “suspension” cannot as yet be deemed to have been made “pursuant to [properly] established administrative procedures”— and it is therefore still outside the coverage of § 2393.
The majority fears the problem of the Engineers’ contracting officers having to “second guess” the Navy but there is no such problem in this case. By March 7, 1984, (the day the Engineers decided it could not award the contracts to ATL), the Claims Court had already specifically held (January 6, 1984) the Navy “suspension” to have been illegal, and this court had already heard the appeal from that decision (the appeal was heard March 5, 1984). Why the Engineers believed, on March 7th, that the “suspension” had to be deemed “pursuant to established administrative procedures” is still a mystery to me.1
I would hold that the Claims Court has jurisdiction over this pre-award “contract claim,” reverse the ruling below, and remand to the Claims Court to consider the merits of ATL’s claim to an injunction.
. I agree with the Comptroller General that "the proper time for determining the effect of a suspension on a firm’s eligibility for award is at award time.” Matter of Bauer Compressors, Inc., GAO No. B-213973, dated April 23, 1984, slip op. p. 3. In the case before us, no award had been made as of March 7, 1984, and everything up to that date indicated that the Navy’s "suspension” was unlawful.